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[Concluded from A. J. P. XXXVIII 175.] 

Part II. 

As for the management of the Prytaneum court, the old 
question so long discussed as to whether the fifty-one judges 
known as the ephetae had charge of it, 1 and the discrepancy in 
two statements of Pollux, who in one passage (VIII, 90) says 
the King-archon, but in another (VIII, 120) the phylobasileis 
or tribe-Kings, were in charge, have been settled by an authori- 
tative statement in the recently discovered Constitution of 
Athens of Aristotle, to the effect that both King and tribe- 
Kings judged. 2 Thus though the ephetae, in charge of the 
homicide courts at the Palladium, Delphinium and Phreatto, 
were in course of time replaced by popular, i. e. heliastic, jurors 
appointed by lot, 3 in all probability the court of the Prytaneum, 

1 Poll. VIII 120, and Harpocrat. s. v. tytrat, state that those officials 
sat at the Prytaneum. Their mistake probably grew out of the fact that 
their source, Demosth. 23, 65-77, juxtaposed the five murder courts ; 
cf. Busolt, Griech. Gesch. II * 234, n. 2. J. Miller, Pauly-Wissowa, 
Realencyclopadie, V, p. 1653 (art. Drakon). 

' 57. 4. Lipsius, Sitzungsber. der sachs. Gesellsch. d. Wiss., Phil.- 
Historische Classe, 1801, pp. 41-52, was the first to point out that the 
King and tribe-Kings acted together. For the older discussion see 
Philippi, Der Areopag und die Epheten (1874), p. 18 sq. 

* Aristotle, 57. 4 speaks of oi XaxoWes having charge of the three courts 
mentioned in his day ; the word i<t>irai. however does not appear in the 
MS. of his work but has been inserted by Kenyon (Suppl. Aristotelicum, 
III, Pt. II, p. 67), being taken from Harpocration, s. v. i<f>4rai, who, he 
supposes, took it from Aristotle. Others believe oi XaxoVres exclude 
the word e&rai ; thus Kaibel, Stil und Text der IIoa. 'A0. des Aristoteles, 
240, supplies ivSpes instead, while Gilbert, Staatsaltert. 1 I, 424, n. 2, 
supplies StKaarai or JiXtaarai ; Lipsius, op. cit. 130, no. 30, also is against 
inserting Itpirai. But it may be said in favor of i<t>4rai that Demosthenes, 
a contemporary of Aristotle, speaks of them in murder trials in his day : 
23. 38. 



owing to the fact that its competence was limited to rare cases 
of a ceremonial character, never had anything to do with them 
and its judges were not so replaced. 1 The King-archon, there- 
fore, true to his inheritance, 2 had the presidency of the court 
of the Prytaneum, as he did of all other homicide trials. 3 

Whether the court before which, according to the general 
assumption based on the amnesty law of Solon, 4 trials of con- 
spiracy against the State (rvpawU) were tried, was identical 
with the court under discussion cannot be finally decided with 
our present knowledge. That the word " KaraSiKaaOevTes " used 
in the passage of Plutarch cited refers to the companions of 
Cylon, who in 612 b. c. seized the Acropolis with the intention 
of setting up a tyranny, 5 is generally assumed. In another 
passage Plutarch says the remnants of the conspirators, still 
under pollution, were persuaded by Solon to be tried by a 
court of 300 nobles and that all were found guilty and exiled, 
even the bones of the dead being dug up and scattered beyond 
the borders. 8 Many scholars believe this decision was handed 
down by the Areopagus, 7 and that all such trials were heard 

1 So Miller, p. 1652. But Lipsius, pp. 20-1, believes down to Solon's 
time they sat in all five courts of homicide; on p. 27, n. 85 (cf. p. 131), 
he says they may have sat at the Prytaneum even down to Aristotle's 
day, when finally they were replaced by the King-archon and tribe-Kings. 

"After the passing of royalty the royal name was retained as &px"" 
paoiXevs. since on him devolved the sacred rites inseparably connected 
with the name of King, i.e. charge of the Eleusinian mysteries, the 
Lenaea, Anthesteria, sacrifices, games, etc. ; Aristot. 57, I, Poll. VIII, 90: 
cf . Demosth. 35, 48 ; 39, 9. The eponymous archon, on the other hand, 
had the guardianship of orphans, widows, heiresses, etc. — a sort of Lord 
Chancellor of Athens; see Demosth. 35, 48 (law, 43, 75), Arist. 56. 6; 

3 Arist. 57. 2; cf. Bekk., Anecd. graec. 310, 6 sq. ; Harpocrat. Phot. 
Suidas, s. v. iiyeiwvla SiKaorripiov ; etc. 

* Plut. Solon, 19 (= Solon's 13th table) irXV 80-01 {k 

wpvravelov KaraSiKaaSivTes imb tup fiaoikitav ivl rvpavvlSi. 

Here the word-order shows that cases of tyranny were tried at a 
prytaneum; cf. Andoc. I, 78. On the amnesty law see Philippi, Das 
Amnestiegesetz des Solon und die Prytanen der Naukraren zur Zeit 
des Kylonischen Aufstandes, Rhein. Mus. XXIX (1874), p. 18 sq. 

"Herod. V. 71 ; Thucyd. I, 126; etc. 

' Solon, 12. 

' e. g. Lipsius, op. cit. p. 23, following the earlier opinion of Wester- 
mann, Ber. d. sachs. Gesellsch. d. Wiss. 1849, p. 151 sq. ; Gleue, De 


there. Others, like Keil, 1 speak for the identity of the two 
courts, while still others, as Busolt, 2 leave the question in 
doubt. It is of importance to us in our later discussion of the 
age of the Prytaneum trials. It would seem impossible to get 
any other meaning out of the words "Wo rmv /Jao-iAeW" than 
to refer them to the tribe-Kings who were in charge of the 
Prytaneum court. 

Down to the fourth century b. c. the courts at the Palladium 
(for the trial of unpremeditated murder) and Delphinium (for 
lawful homicide) seem to have kept their importance. 8 Though 
in early times the Prytaneum court also, because of its religi- 
ous character, may have been important, yet, like the court at 
the Phreatto (where those banished for murder and accused a 
second time were tried) , it must have lost gradually its influence. 
In Aristotle's day, it still continued, as we have seen, under the 
old religious supervision of the King-archon and his associates. 
However, in his Politics, Aristotle makes no mention of it in 
his enumeration of eight necessary courts, which shows it had 
outgrown its usefulness. 4 In primitive days, when men held 

homicidarum in Areopago Atheniensi iudicio (Diss. Inaug. Gottingen, 
1894), p. 10 sq., who followed Stahl, Rhein. Mus. XLVI (1891), p. 
481 sq., who based the theory on a statement to that effect in a schol. on 
Aristoph. Equit. 445. Lipsius, p. 131, believes the prytaneum of the 
amnesty law was an ancient court, no longer known to us, which had 
to do with the Tpvrdveis of the naucraries, and so different from the 
Prytaneum court under discussion. He believes it may have sat at the 
Prytaneum, which was an official seat (cf. Arist. Constit. 3. 5), and that 
it was composed of nine archons sitting with the basileus as president. 
Aristotle, Constit. 8. 4, says the Areopagus tried conspirators against the 
State under a law of impeachment which Solon enacted concerning 
such offenses. He is certainly referring to his day. 

1 Solon. Verf ass. p. 108 sq. ; cf . von Schoffer (quoted by Miller, Pauly- 
Wissowa, V, p. 1653) ; Botticher, 1. c, p. 347. Photius, s. v. vavxpapla, 
says Solon found the Prytaneum in existence; cf. also Etym. Magn. 
395, So. 

' Griech. Staats- und Rechtsalt.', 160. 

'So Busolt, Griech. Staats- und Rechtsalt. (Miiller's Handbuch', 
IV, 1), p. 273, who thinks all the homicide courts were limited in the 
fourth century. 

* IV. 16. 2-4, p. 1300 b. In this passage he mentions, though disparag- 
ingly, the court of the Phreatto : " There may be a fourth court in which 
murderers who have fled from justice are tried after their return; such 
as the court of the Phreatto is said to have been at Athens. But cases 
of this sort rarely happen at all even in large cities " ( Jowett) . 


animistic conceptions of nature, trials of lifeless things must 
have had a greater importance. They were retained chiefly for 
conservative religious reasons until, by Aristotle's day, they had 
become almost ceremonial in character, a species of mock 
trial. 1 The four Ionic gentile tribes of Attica, dating from the 
remotest antiquity, 2 had gradually lost all political significance 
and their chiefs finally retained only religious functions. Sitting 
in judgment at these ceremonial trials was probably their last 
function historically. 3 However, this court, like that held at the 
Phreatto, seems never to have been formally abrogated down 
to the end of antiquity, if we can trust the evidence of 

Before discussing the origin of the ideas at the base of these 
trials, let us briefly consider whether any accounts of the trials 
at the Prytaneum have come down to us. The only example 
known to me of the first case — the trial of an unknown mur- 
derer — is found in the oration of the pseudo-Demosthenes 5 

1 All modern scholars speak of the ceremonial character of these 
trials: e. g. Philippi, op. cit. p. 16; Busolt, op. cit. p. 273; Schomann, 
Griech. Alterthumer* (ed. Lipsius), 1897, I, p. 512: " Endlich beim 
Prytaneion wurde nicht sowohl ein wirkliches Gericht gehalten als 
vielmehr eine religiose Ceremonie vorgenommen " ; Pauly-Wissowa, II, 
p. 284, s. v. afix"" SUai; Gilbert, p. 430; Lipsius, p. 131; Smith, Diet. 
Antiq. art. Prytaneum; E. Curtius, Stadtgesch. p. 302; etc. 

* The population was originally divided into four tribes (<pv\ai) , viz. : 
Geleontes, Hopletes, Aegicores and Argades, presided over by kings. 
Aristotle (Const. 41, 2), in enumerating eleven changes in the Athenian 
constitution before his day, says the people in the days of Ion were 
divided into tribes and chose kings. The functions as well as the origin 
of these kings are little known : they probably from the first enjoyed both 
religious and legal functions, especially the supervision of sacrifices (so 
Pollux, VIII, in) like the Roman rex sacrificulus; cf. Livy, 2. 2. 1, 
6. 41. 9. See Aristot. Fragm. 349 and cf. Busolt, op. cit. p. 273. 

*Cf. Keil, op. cit. p. 108 f.; and n. 76; Wilamowitz, Aristoteles und 
Athen, I, p. 94 sq. ; Lipsius, p. 25, n. 81. In the fourth century we hear 
of the cost of certain offerings being paid from their treasury: Bull. 
corr. hell. Ill, 69; Hermes, XIV, p. S«7- We know Solon retained the 
old tribes as the base of his constitution. Comp. Aristotle, Const. 8. 3, 
who also mentions that there were still four phylobasileis. That they 
led a shadowy existence even in Clisthenes' time is shown by an inscrip- 
tion: C. I. A. 11,844. 

4 1. 28. 10. 

* Orat. 47. The loose and feeble style of this speech makes it almost 
certain that it was not written by Demosthenes, but by a contemporary. 


against Euergus and Mnesibulus. This was a proceeding 
against the defendants for having given false testimony in a 
trial between the plaintiff and Theophemus, a brother of 
Euergus. In the plaintiff's absence from home, the defendants 
had entered the apartment of his wife and children, and in 
attempting to steal certain articles of furniture, had so injured 
an aged freedwoman who resisted them, that she died in six 
days. After her death the plaintiff went to the legal inter- 
preters * to learn what course of action to pursue. They stated 
the law and also advised, that inasmuch as he was not present 
at the murder and had no other witnesses than his wife and 
children, " not to make proclamation against anyone by name, 
but generally against those who had perpetrated the deed and 
committed the murder ".- The case does not, however, seem 
to have come up for trial at the Prytaneum, for the man was 
also advised to bear his misfortune as patiently as possible and 
to perform the necessary religious ceremonies. Of the third 
case — the trial of animals — so far as I am aware there are 
no examples known, and, if we except the trial of the axe of 
the first ox-slayer, none of the second. However, that there 
were similar courts of procedure against inanimate things in 
other parts of the Greek world, is evidenced by a few examples, 
though they are vouched for by late writers. This shows 
that the same primitive animistic conceptions of nature were 
characteristic of the Greek mind generally. 3 

Perhaps the best instance of such a trial is that of the statue 
of the Olympic victor Theagenes on the island of Thasos.* 

1 eiVYV Ta '. §68. They were expounders at Athens of the sacred rites 
and customs and of the laws, like the Roman " interpres religionum ". 
Cf. Aristotle, Constit. n, 1 (eiriyelffBai) ; Isaeus, 73. 24; Plato, Euthyph. 
4 D and 9 A ; Laws, 759 C-E and 775 A ; etc. 


'We know the murder procedure of Athens was imitated by other 
Greek states: Isocrates, Panegyr. 40; cf. Gilbert, p. 535; Lipsius, 
p. 619 ; etc. 

'Theagenes, son of Timosthenes, later because of his exploits called 
the son of Heracles, won in boxing in Ol. 75 (= 480 b. c.) and in the 
pancratium in Ol. 76 (=476 b. a). He also won three times in boxing 
at Delphi, nine times in boxing and once in the pancratium at the Isthmus 
and nine times in boxing at Nemea. He also won the stadium at 
Phthia and is said to have won 1400 crowns in all (Paus. 6. 11. 5; or 


Pausanias recounts how a former enemy of the victor used to 
come each night after his death and scourge his statue as if he 
were punishing Theagenes himself. At last the statue checked 
his insolence by falling upon and killing him. The man's sons 
prosecuted it for murder, and it was found guilty and cast 
beyond the borders, i. e. into the sea. The lands of the Thasians 
became unfruitful and they were advised by the Delphian oracle 
to bring back their exiles. This they did but the dearth kept 
up. A second time they were advised : " But you have for- 
gotten your great Theagenes." They did not know how to 
recover the statue, but finally it was caught in a net by some 
fishermen and brought ashore. Then it was set up in its old 
place in the agora, where Pausanias says they still in his day 
sacrificed to it as to a god. 1 Several similar examples occur 
in Greek literature, but this seems to be the only case in which 
an actual trial and condemnation are recorded. 2 

Having discussed, then, the nature of the trials held at the 
Prytaneum, let us consider whether any data exist from which 

1200, according to Plut. Praecept. reipubl. gerend. 15). See on Theag- 
enes, Paus. 6. 11. 2-9: Forster, Die Sieger in den Olymp. Spielen, Nos. 
191, 196; Hyde, de Olymp. stat. (Halle, 1903), No. 4; etc. 

*VI. 11. 9: he says the victor's statue was set up in many places in 
Greece and honored by the natives as able to heal diseases. Lucian, 
Deor. concil. 12, also says the statue at Thasos cured fevers like the 
one of Polydamas at Olympia. Athenagoras says, Supplic. pro Christ. 
14, p. 62 (Otto), the Thasians worshipped it as a god. See on such 
worship, Rohde, Psyche, I. p. 181 ; Ukert, Ueber Damonen, Heroen und 
Genien (Abhandl. d. k. sachs. Gesellsch. d. Wiss. Phil.-histor. CI. II 
(1850), pp. 139, sq., esp. 183), and Gerhard, Ueber Wesen, Verwandt- 
schaft und Ursprung d. Damonen und Genien (Abhandl. d. k. Akad. d. 
Wiss. zu Berlin, Phil.-histor. CI. 1852, pp. 237-66) ; etc. The story of 
Theagenes' trial is told also by Dio Chrysostom, Orat. XXXI, 618 R. 
340 M. (Teubner I, p. 377), and is mentioned by Eusebius, Praep. 
evang. V. 34, p. 231 c, d, 232 a. Dio Chrysostom, 1. c, formulates the 
Thasian law, an almost exact duplicate of the Athenian. 

1 Thus the statue of the Olympic victor Euthymus of Locri, who won 
in boxing in 01s. 74 (484 b. c), 76, 77 (476-472 b. c.) ; see Paus. VI, 6, 4 
(and VI, 11, 4) ; Forster, Nos. 185, 195, 207; Hyde, No. 56. Eusebius, 
Praep. evang. v. 34, p. 232 b, d, tells a story about his statue almost 
exactly like the one about Theagenes. Another example is that of the 
bronze ox of Philesius at Olympia, set up as a votive offering of the 
Corcyraeans, which caused the death of a small boy, who, while playing 
beneath it, suddenly raised his head, and broke it against the belly of the 
ox : Paus. V. 27, 9-10 ; cf . X. 9. 3. 


we can form an idea of the origin of the court. Pausanias, in 
mentioning the similar court at Thasos, says that the Thasians 
in their laws about lifeless things followed those of Draco at 
Athens. 1 In another passage already quoted, however, he 
connects the trials of inanimate things at Athens with the festi- 
val of the Diipolia, which he says goes back to the royal period. 2 

As we have seen we can get no proof for the date of origin 
from the court of the ephetae, which many scholars, following 
Pollux, 3 believe was instituted by Draco, for we have seen that 
there is no good reason for thinking these judges ever had to 
do with the Prytaneum. And even if it were clear that they 
had, too much doubt has been cast on the statement of Pollux 
that Draco founded the ephetae, to help us in dating the origin 
of these trials.* So we. must look elsewhere for guidance in 
solving the problem. 

K. Botticher has made an ingenious argument to show that 
the court dates back to prehistoric times. 6 Since Pollux says 
the phylobasileis sat in council in the King's palace near the 
Bucoleum, 6 and we learn from other sources that the Bucoleum 
was near the Prytaneum, 7 we know these buildings were in the 
immediate neighborhood of one another. Furthermore, inas- 

*6. 11. 6. The same statement is also made by the Schol. on Aeschy- 
lus, Septem, 179. 

2 1. 28. 10. 

' VIII. 125; cf. Timaeus, Lex. Plat. 127. 

* Philippi was the first to cast doubt on Pollux's statement by showing 
he may have gotten the mistake from a wrong reading of a passage in 
Demosthenes, 43. 57, and so he was against the idea that Draco had to 
do with the founding of the court of the ephetae: see N. Jahrb. f. cl. 
Phil. CV (1872), pp. 578 and 604 sq. ; cf. Der Areopag und die Epheten, 
p. 138 sq. He was followed by Lange, Die Epheten u. der Areopag von 
Solon, p. 3 sq.; Wachsmuth, Stadt Athen, 1. 479. 1; and recently by 
Miller, Pauly-Wissowa, V, p. 2825. Schomann, N. Jahrb. f. cl. Phil. 
CXI (1875), p. 153. and recently Gilbert, Jahrb. f. Philol. Suppl. Bd. 
XXIII, p. 493 (cf. Staatsalt. 2 , I, 136, n. 1) are against Philippi and 
believe with Busolt, Staatsalt. 2 , p. 273, that Draco founded the ephetae. 
If -we don't accept the latter view we must leave the matter in doubt. 
See Miller, 1. c. pp. 2824-6, art. ephetai ; Lipsius, Jahresber. XV, 284 sq. ; 
Hermann-Thumser, Griech. Staatsalt. I, 2, 355 sq.; cf. Busolt, Griech. 
Gesch. 2 II, 234 sq. and Gilbert, Staatsalt. 2 I, 424 sq. 

"Philologus, Suppl. Bd. Ill (1878), p. 345 sq. 

'VIII, in. 

'Aristotle, Constit. 3. 5; Bekker, op. cit., 449, 19-21; Suidas, s. v. 
&PX WV ', etc. 


much as we know from both Aristotle and Pollux that these 
same phylobasileis sat in judgment at the Prytaneum, it fol- 
lows that the Basileum and Prytaneum formed one and the 
same court, for it would be inconceivable that two courts, pre- 
sided over by the same judges, were in the same peribolus. 
Botticher believes that before the synoecism of Theseus the 
tribe-Kings met the King at his basileum, which he thinks may 
have been originally only an open-air cathedra. When Theseus 
constructed the prytaneum in the narrower sense of the word, 
by adding to the basileum a hearth, banquet hall {kaTiarrjpiov) 
and their appendages, which, perhaps, had the form of a stoa 
and exedra, the court still sat in the basileum, though it was 
known thereafter as the court inl t<5 vpvravtlw, a name which it 
kept to the latest days. Until the prytaneum in the narrow 
sense of the word was added to the basileum, he believes the 
old hearth remained above on the Acropolis ; with the trans- 
ference of the Acropolis palace to the lower city, the hearth 
came too. Thus Theseus joined the Prytaneum with its eternal 
hearth to' the old official seat of the tribe-Kings, which still 
retained the ancient court. 

Whatever truth there may be in this theory, we must, quite 
apart from it or any similar line of argument, look for the 
beginnings of this curious court in prehistoric times. What- 
ever the date of the founding of the other murder courts at 
Athens, whether, as many assume, they go back only to the 
legislation of Draco, or are earlier, we can be certain that 
the ceremonial trials held at the Prytaneum must have existed 
from remote times, for the ideas underlying them are based on 
the primitive view that both things and animals are responsible 
for their acts. For such animistic conceptions of nature belong 
to the infancy of races as of individuals. Nor is it strange 
that a people who saw something divine in every tree, fountain 
and river, should have endowed common things with life and 
animals with responsible intelligence. The strange thing is, 
not that such notions should have developed in primitive Greece, 
but that they should have clung to the Greek imagination 
throughout the history of the race, and that they should have 
been countenanced by their greatest thinker. It is only, per- 
haps, when we fully understand the conservative spirit of the 
state religion and ritual that we can see how this was possible. 


We know, that though such beliefs are, characteristic of primi- 
tive peoples, they leave their traces among the most civilized. 
The numerous prosecutions of animals before state and ecclesi- 
astical courts in Europe — there are cases dating from the ninth 
century into the twentieth — show to what an extent the idea of 
the moral responsibility of animals may develop. 1 And the laws 
of deodand in England — whereby personal chattels, such as 
carts and wheels which had caused the death of a man, were 
" forfeited to God, that is to the King, God's Lieutenant on 
earth, to be distributed in works of charity for the appeasing of 
God's wrath " 2 — which were not repealed until the reign of 
Victoria/ show how far animistic notions may survive among a 
highly cultured people. 

The object of Plato's ideal legislation, which we have dis- 
cussed, was exactly the same as that which was at the bottom 
of all the laws against murder at Athens — the appeasing of the 
Erinys or avenging spirit of the dead man. 4 If this were not 
done and every attempt made to bring the murderer to justice, 
calamity was sure to befall the community. Antiphon says of 
a certain murderer : " It is harmful for you that this man, vile 
and polluted as he is, should enter the precincts of the gods 
to defile them, or should poison with his infection the guiltless 
person whom he meets at the same table. From such causes 
spring plagues of barrenness and reverses in men's fortunes ". 5 
In a final analysis, it resolves itself into nothing less than the 
lex talionis, the oldest and deepest-rooted in human nature of 

1 See E. P. Evans, The Criminal Prosecution and Capital Punishment 
of Animals, London 1906, and other works cited by him. The first 
case he adduces is the prosecution of moles in the valley of Aosta in 
824; the last was the condemning to death of a dog which had helped 
its master kill and rob a man in the village of Delemont, Switzerland, 
1906. In all he has brought together over 200 such prosecutions. 

'Coke, Third Part of the Institutes of the Laws of England (1680), 
p. 57 ; cf . Blackstone, Commentary on the Laws of England, Bk. I, ch. 8. 

' In 1846 : see Stephen, Hist, of the Criminal Law of England, III, 78 ; 
Pollock and Maitland, History of English Law before the time of 
Edward I, II, 473. 

*The medieval church taught in effect the same doctrine, substituting 
the daemons of the Christian theology for the Furies of Mythology. 

'First Tetralogy, A, 10; in the Second, r, 8, he speaks of 8ela kijklt 
or "divine stain " ; cf. Aeschyl. Eumen. 815, where the Erinyes threaten 
Attica with X«xV o^uXXos, irexvos — " leafless blight and childlessness " ; 
cf. Soph. Oed. Tyr. 25 and 101. 


all laws, axiomatic in primitive societies and lingering on 
among those most advanced. Aeschylus vindicated the ways of 
God with men by insisting that the law of Righteousness 
was all-pervading. If a man suffers, it is merely a divine 
visitation of sin. If circumstances make it difficult to under- 
stand why this man or that suffers, or why he suffers more than 
his offence would seem to merit — search his family history and 
you will surely find that a commensurate sin has been com- 
mitted somewhere. So the belief in destiny helped the doctrine 
of retribution. 1 Nowhere is the Greek law of " blood for 
blood " — whether the slaying was wilful or accidental made no 
difference, for in either case the moral equilibrium had been 
disturbed — more strongly affirmed than in the Choephori, where 
Orestes says : 

"Just meed may the unjust obtain! 
Earth and ye powers of Hades, hear my prayer." 

To which the chorus replies : 

" For law it is, when on the plain 
Blood hath been shed, new blood must fall, 
Carnage doth to the Fury call; 
Avenger of the earlier stain, 
She comes, new Ruin leading in her train." ' 

Inwoven with this idea of retribution was the whole Greek 
conception of personifying inanimate objects. A most strik- 
ing example is found in the first stasimon of the Electra of 
Sophocles, where the Chorus, encouraged by the tidings of 
Clytaemestra's dream predicting early retribution on Agamem- 
non's murderers, says : " Not forgetful is the two-edged axe 
of bronze that struck the blow of old and slew him with foul 
cruelty ". 3 Here the very axe is imagined as harboring a 

1 Cf. Jebb, Classical Greek Poetry, pp. 181-2. He shows that Sophocles 
also, with his milder doctrine of fate, believed in the same notion, though 
he treated it as a less prominent agency: he saw it working in the 
houses of Pelops and Labdacus : a comparison, however, of the Oedipus 
Tyrannus and the Septem shows the difference in the application of the 
idea by the two writers. 

'398-404 (Swanwick). 

* 484-6 (Jebb) : cf . also 1. 99, where Electra speaks of the <p6nos 
Tr^Xeicus — " the murderous axe " ; and cf . Trachiniae, 856-9, where the 
" dark steel of the spear " " bore off " Iole from " high Oechalia's 
peaks ". 


grudge against those who had wrongly used it and brought 
pollution on it. Nor are such instances, which can be multi- 
plied from Greek literature, merely the result of poetic coloring, 
but they were based on a real belief inherent in the race. 
Aristotle, speaking of " chance circumstances ", instances the 
statue of Mitys at Argos, which fell upon his murderer and 
killed him. 1 Similarly Theocritus tells how a statue of Eros, 
which stood on a pedestal overlooking a bathing-place, leaped 
upon and killed a youth bathing beneath it because he had driven 
his lover to suicide by his refusal. 2 In these cases there was 
no prosecution as in that of the statue of Theagenes, but the 
same ideas of revenge underlay them. 

The operation of the law of reprisal seems still clearer in 
the case of animals. Various opinions have been advanced since 
Thomas Aquinas published his Summa theologica down to our 
time to explain the prosecutions of animals inaugurated by the 
medieval church. 3 I have discussed many of these theories else- 
where,* and here need only touch upon one which has been 
applied also to the prosecutions of animals at Athens. Ayrault, 5 
at the end of the sixteenth century, explained such punishment 
in the Middle Ages as a symbolic act intended to inspire a 
horror of crime in the minds of men. In the last century this 
theory has gained much adherence. Thus Leon Menabrea 6 
believed the church was eager to revive in the people a senti- 
ment for justice, since through sad experience they had come to 

1 Poetics, 9. 12, p. 1452 a, 7 sq. 

•Idylls, XXIII, 59-60: cf. Callimachus, Epigr. VIII (Sch.), who 
recounts a similar death. 

"Aquinas (1225-74) explained them on the basis that animals were 
the embodiments of evil spirits, so that it was not they that were aimed 
at but Satan through them. His theory was helped by the fact that the 
Old Testament frequently mentions animals — e. g. adders, dragons, 
leviathans, scorpions, etc. — as such incarnations. It is the basis of the 
view of Karl von Amira, Thierstrafen und Thierprocesse (1891), p. 169. 

'The Prosecution and Punishment of Animals and Things in the 
Middle Ages and Modern Times, Univ. Penn. Law Review, vol. 64, 
no. 7 (May, 1916), pp. 696-730, especially p. 716 sq. 

* Des procez faicts au cadaver, aux cendres, a la memoire aux bestes 
brutes (Angers, 1591), fol. 24; cf. Tissot, Le droit penal, I, 19 sq. 

*De l'origine de la forme et de l'esprit des jugements rendus au 
moyen age contre les animaux (Chambery, 1846) ; cf. the similar view of 
Du Boys (author of the Histoire du droit criminel des peuples modernes, 
Paris, 1854-60), quoted by d'Addosio, Bestie delinquenti (1892), p. 139. 


know right only as synonymous with might. More recently, 
Thonissen 1 has given this as an explanation of the Athenian 
trials. But any such " moral " theory is far from satisfactory. 
The true solution of the medieval trials seems far simpler. 
Though the maledictions and excommunications of the church 
may have been a magic means of getting rid of scourges of 
insects rather than punishments, it seems probable that the 
condemnation of animals was at bottom merely the result- of 
feelings of revenge. 2 The animal had to suffer because its act 
had aroused indignation and because it was looked upon as 
responsible. 3 This feeling of revenge can be traced back to an 
old European custom. Thus, as Westermarck observes, among 
practically all the Aryan nations of ancient Europe — among 
the Greeks,* Romans, 5 Teutons," Celts 7 and Slavs 8 — an animal 
which had done serious injury, such as biting or killing a 

'Le droit penal de la republique Athenienne (1875), p. 414; he says, 
" on frappait l'animal auteur d'un homicide, afin que le pueple, en voyant 
perir tin etre prive de raison, concut une grande horreur pour l'effusion 
du sang humain". 

'Brunner, Forschungen zur Geschichte des deutschen und franzo- 
sischen Rechtes (1894), p. 517 sq. : cf. Westermarck, Origin and Develop- 
ment of Moral Ideas, I (1906), pp. 256 sq. 

'Post, Die Grundlagen des Rechtes (1884), p. 359; K. Friedrichs, 
Mensch und Person (in Das Ausland), LXIV (1891), p. 300, 315. 

4 Xenoph. Hell. II, 4. 41; Plut. Solon 24. A similar ordinance about 
muzzling dogs is found also in the Avesta (Vendidad, Fargard XIII, 
29-30) where, if a mad dog appears without barking, the people are 
enjoined to " place round its neck a wooden collar to which is attached 
on both sides a muzzle, of an ashti (i. e. the thickness of a brick) if the 
wood is hard, or two if it is soft ". But here nothing is said about giving 
up the animal. In Solon's law, the animal can be returned to its owner, 
if compensation for the injury is made. 

' Institutiones (of Justinian), ed. P. Kriiger, in Corpus juris civilis, 
I, IV, 9; Digesta, ed. T. Mommsen, ibid. I, IX, 1. 

'Lex Salica (The Ten Texts, etc. ed. by J. Hessels, 1880), Cod. I, 
36; Lex Ripuariorum, 46 (in Georgisch, Corpus juris Germanici antiqui, 
Halae, 1738) ; cf. J. Grimm, Deutsche Rechtsalterthiimer (ed. A. 
Heusler and R. Hiibner, Leipsic, 1899), pp. 664 sq.; Brunner, op. cit. 

P- 513. 

'Ancient Laws and Institutes of Ireland (1865-79), I, 161; IV, 177, 
179, 181 : Welsh Laws, IV, 1, 17 (in Ancient Laws and Institutions of 
Wales, 1841, p. 391). 

*W. A. Macieiowski, Slavische Rechtsgesch., Stuttgart, 1835-9, IV, 
P- 333- 


man, had to be given up to the injured party or his family. 
Here there was no trial ; but it is inconceivable that the animal 
was given up as compensation. It is certain that it was done 
for retaliation, that the victim or his family might be revenged. 1 
Later on in the Middle Ages the form of reprisal was changed 
into a regular system of punishment, which implies that the 
principle according to which punishment succeeded revenge in 
the case of human crimes had been extended by analogy to 
comprehend injuries done by animals. The beast was retaliated 
upon for the simple reason that it was regarded as a rational 
being. This feeling was not only at the bottom of the trials of 
animals at the Prytaneum and in the courts of the Middle Ages, 
but it has been common to all ages and to all grades of human 
society. The savage, in wreaking his vengeance, makes no 
distinction between men and beasts. In the Koran we read that 
animals will share in the resurrection and be judged according 
to their works. 2 In Zoroaster's legislation a dog is said to have 
the characters of eight different sorts of people. 3 We know 
that animals were admitted as witnesses in medieval courts, 4 
that their youth was there a ground of acquittal, 5 and that a 

1 For works cited see Westermarck, I, 256, n. 1. 

a VI. 38; cf. Sell, Faith of Islam, p. 223; for these examples see 
Westermarck, I, 258-60. 

* Vendidad, XIII, 44-48; Darmesteter thus translates verse 44: "Le 
chien a lui seul a huit caracteres .... d'un pretre, guerrier, laboureur, 
musicien, etc." However my colleague, Dr. Carnoy of Louvain, says this 
is ambiguous, as it implies that the dog is the receptacle of eight dif- 
ferent natures. The Avestan word asta-bif ra literally means " is the 
equivalent of ", and the sentence is translated more exactly by Wolf in 
his rendering of the Avesta (Strassburg, 1910, based on C. Bartholo- 
mae) : " Der eine Hund lasst sich mit achten vergleichen ". Dr. Carnoy 
adds that in the following lines the word used is haya, which is of 
obscure origin but apparently akin to the modern Persian word xim, 
"character", in meaning; it is translated by Wolf as "Gebaren": "es 
zeigt ein Gebaren wie ein Priester, etc." Thus in substance the meaning 
is that the dog is comparable to eight beings in some aspect of his nature 
— a tribute to his value. 

* Cf . Michelet, Origines du droit francais, pp. 76, 279 sq. ; Chambers, 
Book of Days, I, p. 129. 

"Thus a sow and her six pigs were tried for murdering a child at 
Savigny-sur-Etang (Bourgogne) in 1456; the pigs were acquitted 
partly because of their youth: Memoires de la Societe Royale des 
Antiquites de France, VIII (1827), pp. 441-5 ; Chambers, I, p. 128-9. 


repetition of the crime aggravated the penalty. 1 And it is not 
only ordinary minds which have ascribed intelligent responsi- 
bility to brutes. Porphyry 2 says all philosophers, who have 
studied the natures of animals, agree that they are possessed 
of reason to a certain extent. Christian writers have gone 
further. Thus in the sixteenth century, Benoit* argued that 
animals could talk — an idea as old as Homer, and in the next 
century a book was written in Latin to prove that they could 
reason better than men. 4 At about the same time Crell * main- 
tained that they had faculties analogous to reason and free 
will, as well as vices and virtues, and so deserved rewards and 
punishments. His ideas, to some extent, have found an echo 
in the scientific works of the modern school of anthropologists. 8 
Thus we see that the trials of animals at Athens were only 
one manifestation of a very general principle. 

In the earlier part of this discussion I have shown that in 
all probability the origin of the strange ritual of the buphonia is 
to be sought in some form of totemism or in some allied primi- 
tive fact. In the latter part I have found the origin of the 
Prytaneum trials of inanimate things and of animals embedded 
in the hoary lex talionis, coupled with the usual Greek notion 
of personification, which is merely a relic of prehistoric ani- 
mism. Thus there appear to be two different sets of ideas quite 
independent of one another at the bottom of the buphonia and 
the trials, so that I conclude that there is little inherent prob- 
ability in the tradition handed down by Pausanias that the trials 
of things at Athens originated in the ceremonial process of 
the axe used by the first ox-slayer at the celebration of the 
festival of the Diipolia. 

In conclusion let us briefly consider whether there are traces 
of ideas elsewhere in the ancient world similar to those under- 

1 Pertile, Gli Animali in giudizio (Atti del Reale Istituto Veneto di 
scienze, etc. Ser. VI, Vol. IV, 1884-5), p. 148. 

• Op. cit. Ill, 6. 

"Quoted by d'Addosio, p. 214. 

4 By Rorarius ; Quod animalia bruta ratione utantur melius homine, 
Paris, 1648. 

*In his Ethica Christiana (1663?) : cf. Westermarck, I, p. 259. 

'e. g. Lombroso, II Delitto negli animali (Archivio di Psichiatria, II, 


lying the Prytaneum trials. In general it may be said that 
such criminal prosecutions are found only among the ancient 
Teutonic peoples. But there are many analogies of the Greek 
notion of regarding things and animals as intelligent and 
responsible agents. 

Thus in India the gods of the Vedic age cursed the trees 
which had injured them. 1 In Persia Cambyses, the son and 
successor of Cyrus the Great, is said to have accidentally in- 
flicted with his sword a mortal wound on his thigh, the very 
spot where he had sacrilegiously given the death blow to the 
sacred bull Apis. 2 To the Greek Pausanias this was the best 
example of an inanimate object inflicting of its own accord a 
righteous punishment. 3 The childish rage of Xerxes in scourg- 
ing and fettering the Hellespont,* and the vengeance wreaked 
by Cyrus on the river Gyndes by dissipating it into 360 chan- 
nels, 6 are well-known illustrations of the same principle. 

The exact antithesis of the Greek custom of trying guilty 
things is seen in the Roman law ascribed to Numa, 6 and men- 
tioned by Cicero and other Latin writers, 7 according to which 
" if a weapon have sped from the hand rather than been 
aimed ", 8 the weapon is not tried, but the owner must tender 
a ram as a peace offering to the victim's kinsmen. Dio Cassius 8 
tells a story about a statue of Apollo, which is very similar to 
the stories already mentioned about statues in Greece. It wept 
for three days after the death of Scipio Africanus and was then 
cut to pieces and cast into the sea by the Romans at the advice 
of their soothsayers. 

The condemnation and banishment of inanimate objects 
which had caused the death of a man is seen in the spirit of 

1 Oldenburg, Die Religion des Veda, p. 518. 

* Herod. Ill, 64. The point of the story is no less real if we read in 
Ctesias that the King died of a wound self-inflicted on his femoral 
muscle while whittling a piece of wood with a small knife. 

* 1. 28. 11. 

* Herod. VII. 35- 

8 Herod. I, 189 : cf. 202 and V. 52. 

* So Servius in Verg. Eel. IV. 43. It was later incorporated into the 
Twelve Tables as part of Tab. VIII: see R. Scholl, Legis Duodecim 
Tabularum Reliquiae (1866), p. 150, 24. 

'Topica, 17. 64; cf. Pro Tullio, 21. 51 and De Orat. Ill, 39, 158; also 
Boethius, Comm. in Cic. Top. I : Augustine, de liber, arbitr. 1. 4. 9. 
* " Si telum manu f ugit magisquam iecit." 

* f r. 83 M. : cf . Frazer, Pausanias, IV, p. 39. 


the ancient Germanic codes. These do not content themselves 
with imposing general obligations to appease the relatives of the 
dead man, but determine very definitely the amount which must 
in each case be paid to the surviving kinsmen. 1 In the Ripuarian 
laws men were forbidden to use what had been the " auctor 
interf ectionis ". 2 In Anglo-Saxon laws, a sword with which a 
man had been slain was " nicht gesund ", and consequently could 
not be used until the crime had been expiated. No cutler would 
sharpen or repair it until he had a certificate that it was free 
of taint. 3 An old municipal law of Schleswig made a builder 
responsible if anyone were slain by a beam falling from his 
building, and he had to pay a fine of nine marks or give over 
the timber to the victim's kinsmen ; if he persisted in building 
it into the house, the later owner might have to atone for the 
homicide with the whole building. 4 According to a law of King 
Alfred in the ninth century, when men worked together in a 
forest, and one accidentally let a tree fall and kill a companion, 
the tree went to the victim's family if removed in thirty days. 5 
The later English laws of deodand already mentioned were 
Germanic in origin, despite Blackstone's notion that they were 
the evil invention of Popery. Here regular trials took place be- 
fore juries composed of twelve men, who investigated the 
occurrence and evaluated the guilty object, which was then 
forfeited or accursed. 6 But these latter examples bring us 
down into the Middle Ages. 

There are, on the other hand, comparatively few examples of 
animals being treated as responsible agents among other nations 
of antiquity. There is a remarkable injunction in the religious 
laws of the Persians, 7 according to which, if a mad dog is not 
muzzled and, without barking, wounds a man or a sheep, he is 

'See C. Trummer, Die Lehre von der Zurechnung (1845), chs. 
28-38; Vortrage iiber Tortur, etc., in der Hamburgischen Rechtsge- 
schichte (1844-9), L 376 sq. ; Brunner, Forschungen, p. 521 sq. ; R. 
Schmid, Gesetze der Angelsachsen* (1858). 

' Lex Ripuariorum LXXI. 

" Cf. Evans, p. 187. 

4 Brunner, Deutsche Rechtsgesch. II, 557, n. 31. 

"Laws of Alfred (Ancient Laws and Institutes of England, 1840, 

II. 13). 
' Blackstone, par. 301, n. e. 
' Vendidad, Fargard XIII, v. 31 : cf . 32 sq. ; Yashts, XXIV, 44. 


to be punished with the penalty of baodho-varshta, i. e. as for 
wilful murder. 1 This punishment takes the form of a progres- 
sive mutilation, corresponding with the number of persons or 
beasts bitten, beginning with the loss of the ears and ending 
with the amputation of the tail. 2 Thus insanity could not be 
pleaded in the animal's defence. 3 So cruel a law seems utterly 
out of harmony with the kindly spirit which pervades the Avesta 
in general towards animals, which are recognized as creatures 
of Ahura Mazda, and it is also inconsistent with the measures 
taken by the Aryan peoples generally for the protection of the 
dog, an animal so useful to pastoral peoples. In fact, in a 
succeeding paragraph of the Vendidad, the Mazdayasnians are 
commanded to treat a mad dog humanely, " to wait upon him 
with medicaments and to try to heal him, just as they would 
care for a righteous man ". 4 Such a contradictory enactment 
may be explained as a later interpolation, dating possibly from 
the Sassanian period of Persian history, to which we owe our 
present form of the Avesta. 

The Jewish enactments about killing animals are well known. 
Thus an ox which gored a man or woman to death was to be 
stoned and its flesh could not be eaten. The owner was quit, 
unless it was shown that the beast had been wont to gore and 
had not been guarded, when both ox and owner were put to 
death. If a ransom was laid on the ox, it had to be paid, the 
amount exacted for goring a servant being stated as thirty 
shekels of silver. 5 Here, as in the Avestan writings, there are 
no certain indications of court proceedings. But the fact that 
in both accounts the penalty was increased with the number 
of injuries seems to show that adjudication must have been 

1 J. Darmesteter, Le Zend Avesta, II, p. 196, explains this as " le 
m^f ait volontaire et la peine qui suit " ; cf. index, " mefait volontaire, 
en general l'homicide". 

' vv. 32-4. 

* In the Middle Ages also a mad dog could not plead insanity in the 
courts. Thus in 1610 several mad dogs, which had torn a Franciscan 
novice, were tried and executed. The remarkable feature of this case 
is that they were tried by a legal tribunal, no account being taken of 
their rabies as an extenuating principle ; see Evans, p. 176 (quoted from 

*XIII, 35- 

' Exodus, XXI, 28-32. 


in the hands of judges. There are examples of anathemas 
against both animals and things in the Old Testament writings : 
thus Jahveh's cursing of the serpent in Eden 1 and David's 
malediction against the mountains of Gilboa that they receive 
neither dew nor rain 2 may be mentioned. Nor should we omit 
the cursing of the barren fig tree of Bethany by Jesus in the 
New Testament. 8 

There is no indication in Roman law that animals were held 
responsible for their acts. The phrase " animal quod sensu 
caret" occurs in the codes. 4 Though the tradition that the 
commission drawn up to codify the laws of Rome — the later 
Lex XII Tabularum — went to Athens to consult Solon's code 
seems well founded, 5 no imitation of the Prytaneum process 
can be traced, so far as the fragments of the law are known. 6 
But outside the realm of their legal system, we see in their ritual 
a curious survival of the doctrine of retribution according to 
which the descendants of animals which have committed crimes 
are punished. On the anniversary of the preservation of the 
Capitol from the night attack of the Gauls, the descendants 
of the geese, which gave the warning by their cackling, were 
honored, while those of the unvigilant dogs were treated with 
contumely. Thus Plutarch says that, still in his day, a dog 
fastened to a cross, and a goose lying upon rich cushions on a 
bed of state, were carried with pompous solemnity about the 
streets of Rome. Pliny adds that each year punishment was 
inflicted upon the dogs by crucifying several on a gibbet of elder 
between the temples of Juventus and Summanus and that the 
first duty of the censor was to farm out the feeding of the 
sacred geese. 7 Such an imputation of merit and demerit was 

1 Genesis, III, 14-15- 

" II Samuel, I, 21. 

' Matthew, XXI, 19. 

*e. g. Digesta (of Justinian), IX, 1 ; Institut. IV, 9. 

"See Bosch, De XII tabularum lege a Graecis petita (1893). 

" See the last recension by M. Voigt : Gesch. und System des Civil- 
und Criminal-Rechtes, wie -Processes der XII Tafeln nebst deren 
Fragmenten (Leipsic, 1883), I, p. 697 sq. : cf. Scholl, op. cit, and F. 
Goodwin, The XII Tables (1886). 

'Plut. De Fortuna Rom. 12 and Quaest. Rom. 98; Pliny, H. N. 29, 
14 and 10, 26. For the Gallic attack, see Livy, V. 47 ; Cicero, Pro Roscio 
20 ; Servius ad Aen. 8, 652 ; Dionys. Halic. XIII, 7. 


about as sensible as the Jewish idea of visiting the sins of the 
fathers on the children, or any such scheme of inherited guilt, or 
vicarious atonement. For they all — as Evans remarks x — are 
applications of the primitive principle, according to which the 
whole tribe is held responsible for the conduct of each one 
of its members. It was still in vogue in the Middle Ages, 
when pigs were the commonest animals brought before the 
bar of justice, as they were supposed, on account of their 
Gadarene ancestors, to be the most liable to diabolical posses- 
sion. A more modern example is afforded by the custom of 
cock fighting, which formed a general amusement in England 
and Scotland up to the nineteenth century. On Shrove Tuesday 
boys were allowed to bring their favorite cocks to the village 
school, where the bout was to be " pulled off " before the master 
as umpire. 2 Those who felt that the practice needed any 
defence, found it in the idea that the race of cocks was to suffer 
this annual barbarity by way of punishment for the crime of 
St. Peter, though, it must be added, few had any such scruples. 

Walter Woodburn Hyde. 

University of Pennsylvania. 

*p. 177. 

2 Roberts, Social History of the People of the Southern Counties of 
England (1856), p. 421; Rogers, Social Life in Scotland (1884-86), 
H, 340.